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The Mental Health Act
What is the Mental Health Act?
The Mental Health Act was first introduced in 1983 (further amended in 2007) and sets out how you can be treated if you have a mental disorder, and what your rights are. It is divided into sections. You can be kept in hospital under different sections so you can be assessed or so you can be provided with treatment for a mental disorder. When you are admitted to hospital under compulsion this is commonly known as “being detained under the Mental Health Act”. The length of the hospital stay depends on the type of section applied under the Mental Health Act.
What is the criterion for detaining people under the Mental Health Act?
A person may be detained in hospital if two doctors and an AMHP consider that they suffer from a serious mental disorder and either;
- that detention in hospital for a limited period for assessment and treatment is justified in the interests of that person’s own health and safety or for the protection of others, or
- that the mental disorder requires treatment in hospital for a longer period of time and it is necessary for that person to be detained in order to receive such treatment in the interests of their own health or safety or for the protection of others.
The tribunal and its powers
What does the Mental Health Review Tribunal for Wales do?
The Tribunal is an independent tribunal. It provides an important safeguard for patients who have had their liberty restricted under the Mental Health Act. Our function is to review the cases of patients who are detained in a hospital or living in the community subject to a conditional discharge, community treatment or guardianship order.
What powers does the tribunal have?
In general, if you are on a Section that can last for 28 days or longer, the Tribunal can decide if the Section should continue. The Tribunal can also consider whether you should continue to be subject to a Community Treatment Order (CTO) or Guardianship Order. If the Tribunal does not discharge the Section or Order, it can recommend that you be given leave of absence, transferred to a different hospital, transferred into Guardianship, or that your Responsible Clinician considers whether to make a Community Treatment Order (CTO). Furthermore, the Tribunal can reconvene to further consider your application or referral if a recommendation has not been complied with.
Can the tribunal change my medication, my diagnosis, or which doctor, community practice nurse or social worker I see?
No. The Tribunal can only consider whether you should remain subject to the Mental Health Act.
How does the Tribunal reach its decision?
The Tribunal will speak to your doctor, social worker or CPN, and other people involved in your care, usually including family members, as well as to you if you want to talk to them. They will consider written reports from your care team. You, or your legal representative if you have one, will also have the opportunity to ask questions of your care team. The Tribunal will consider all it has heard and read before making its decision. You can find out more about what happens at the hearing, and the criteria the Tribunal must consider, in the section of our website about the Tribunal Hearing.
How do I make an application to the tribunal?
You can fill out an application form, write to us, or ask your legal representative to make an application for you. The application form can be found in the Applications section of this website, or you can ask your advocate (IMHA), social worker or ward staff to provide one. Please see the Applications page of this website for more information. See guidance booklet MHRTW-06.
I am subject to the Mental Health Act, when can I apply to the Tribunal?
This depends on what section or order you are subject to. Please see our Eligibility Table to find out when you can apply.
Who can make an application to the tribunal?
Application eligibility for some of the more frequent Sections and for Nearest Relatives can be found in our Applications guidance in the Guidance & Forms section of this website. This website also contains an Eligibility Table showing application eligibility for all Sections or Orders.
Am I entitled to legal representation?
Yes. Free legal representation by a specialist solicitor is available to anyone who has applied for a Tribunal. The Tribunal office has a list of specialist mental health solicitors which you can find on this website; your advocate (IMHA), Mental Health Act Administrator, or staff on the ward can also give you a copy of this list. You can be legally represented by anyone you like, if they are willing, except another patient at the same hospital as you.
Is my application confidential?
Yes your application will not be shared with anyone other than those that need to see it as part of your tribunal hearing.
Can I make my application in Welsh?
Yes the Tribunal is happy to receive applications in Welsh
Do I have to pay a fee to the tribunal to make an application?
No there is no fee payable for applications
What happens once the tribunal receives my application?
The Tribunal office will acknowledge receipt of your application and make arrangements to hold the hearing. Nearer the time of the hearing you or your legal representative will receive copies of reports written by your care team. Shortly before the hearing the Tribunal’s Medical member will make arrangements to see you for a preliminary examination.
What if I have any additional needs?
Please make sure that you give details of any additional needs when you send us your application. For example you should say if you need a signer or an interpreter at the hearing, or need any additional arrangements for the hearing.
When will the hearing happen?
This depends on which Section/Order you are subject to but can range from 7 days to 14 weeks. Time frames are set out in our guidance booklet MHRTW-06.
What if I change my mind about applying?
If you decide you do not want to have a hearing after all, you can make a request to withdraw your application. If you are legally represented, you should speak to your legal representative first and ask them to make a request to withdraw. If you are not represented, a Legal member of the Tribunal will meet with you to ensure that you understand the implications of withdrawing. The request to withdraw your application needs to be made in writing. Complete application form MHRTW-18 to make this request. Read our guidance document MHRTW-18A if you need help to complete this form. The Tribunal then considers your request and will let you or your legal representative know if it has been accepted.
Who is my nearest relative?
The Mental Health Act provides information on who can be treated as your nearest relative; your hospital can also provide you with information and guidance on who is classed as your nearest relative. There are exceptions to these rules or if you are under 18, further advice should be sought from your hospital.
Can I change my nearest relative?
Yes. If you do not think your nearest relative is suitable to be your nearest relative you can ask a County Court to change this. Further information is provided in our guidance booklet MHRTW-06.
Can my nearest relative make someone else my nearest relative?
No. They cannot make someone else your nearest relative, but they can say that someone else should do the things which they would normally do as your nearest relative. This is called delegating their rights and they must tell you if they have done this.
What if I don’t have a nearest relative?
You can ask the County Court to make someone your nearest relative but only if you do not have a nearest relative or no-one can identify who your nearest relative is. Some other people can ask the court to do this as in changing your nearest relative. The Court would then make an order saying who should be your nearest relative.
Why has my case been referred to the tribunal?
Under certain circumstances the authority responsible for your Section or Order) has a legal duty to make a referral to the Tribunal and in some cases the Welsh Governments Minister for Health and Social Services may also make referrals at their own discretion.
What happens when a referral is made?
The referring authority will write to the Tribunal office to make the referral. The Tribunal office will then write to let you know that a referral has been made and provide further information.
Can I still apply to the Tribunal if a referral is made?
Yes. Referrals do not affect your own right to apply to the Tribunal.
When are referrals made?
This depends on the Section or Order you are subject to, and for how long. Your legal representative or Mental Health Act Administrator can tell you when a referral is due. This website contains an eligibility table showing when referrals are due.
When will my referral hearing happen?
This will depend on the section or order you are subject to but time limits are from 5 to 14 weeks. Our guidance booklet MHRTW-10 provides further information.
What can be a nearest relative?
‘Nearest Relative’ is a legal term and usually means the patient’s family member who has certain rights and powers under the Mental Health Act. A person’s legal Nearest Relative is not necessarily the same as their next of kin.
What are my rights as nearest relative?
The Mental Health Act says that you can do various things in connection with relative’s care and treatment. It also says that other people have to tell you things about their care and treatment. These are called your nearest relative rights. See guidance booklet MHRTW-09 for more information.
What is my role as nearest relative?
Your role is important under the Mental Health Act. It gives you the right to make certain applications in respect of your relative’s admission to hospital. Further information can be found in our guidance booklet MHRTW-09.
How do I apply to the Tribunal?
You can write to us or instruct a legal representative to do so. Please see the guidance on applications, or the table showing who is eligible to apply, before making your application; both can be found on this website.
When can I apply to the Tribunal?
This depends on the type of section or order but can range from 28 days to 6 months or more. Further information on timescales in provided in our eligibility table.
I am a displaced nearest relative. When can I make an application to the Tribunal?
A displaced nearest relative of someone subject to Section 3, Section 17a (Community Treatment Order), or Section 7 (Guardianship Order) may make an application to the Tribunal once during the first 12 months of their relative’s Section/Order, and once during each year thereafter.
The Tribunal Hearing
What happens at a tribunal hearing?
The tribunal will explain the procedure at the start of the hearing. At the hearing, the Tribunal panel and your legal representative will have the opportunity to ask questions of your care team and will usually want to speak to you too. You do not have to speak to the Tribunal if you don’t want to. If you want to leave the hearing at any time, tell your legal representative or let the Tribunal panel know.
When the Tribunal members have finished asking questions, they will ask everybody to leave while they make their decision. Usually they will tell you their decision on the day. A copy of the written decision will be sent to you or your legal representative soon after the hearing.
Sometimes the Tribunal will be unable to reach a decision, for example because it does not have enough information. In this case, the hearing will be adjourned and new hearing date and time will be arranged. See guidance booklet MHRTW-07 for further information.
Where will the hearing be held?
The hearing is usually held at the hospital in which you are detained.
Who will be at the tribunal hearing?
There will be three people on the Tribunal panel, known as the Legal, Medical and Lay members. They are independent of your doctor, social worker or community psychiatric nurse (CPN), or the hospital if you are detained (“sectioned”) there, your legal representative, if you have one, your doctor (psychiatrist), your social worker and/or your CPN will also be at your hearing. If you are in hospital, a nurse will usually attend. If you have told us that they can be invited, your Nearest Relative may also be there.
The hearing is about me, can I bring someone with me to the hearing for support?
Yes. Unless the tribunal otherwise directs you can by accompanied by any other person you wish but you must let the tribunal know of anyone that will be attending to support you by completing form MHRTW-02. The tribunal will not pay their travel expenses and they cannot act as your representative.
What are observers?
Observers are usually mental health professionals such as doctors or social workers who are learning about Tribunals. You do not have to allow an observer at your hearing if you don’t want one; just tell your Legal Representative, your advocate (IMHA), or the Tribunal panel.
What is a postponement?
If a Tribunal hearing is postponed, it means that it will take place on a later date than the one originally planned.
What is an adjournment?
A hearing is adjourned if it has started, but stops before it is completed. A new date will be set to hold the rest of the hearing.
Will the tribunal complete a medical examination before the hearing? Who carries out the medical examination and what happens?
Yes, the Tribunal medical member will arrange to see you in private before the hearing. They will ask about your symptoms and how you are feeling and form a view about your current mental health and any other relevant matters which they will then disclose to the other Tribunal members before the hearing starts. They will also look at your hospital notes and may talk to members of the team looking after you.
You do not have to meet the medical member but it is helpful for the Tribunal to have this preliminary view before the actual hearing starts.
Can I stop the tribunal hearing from happening?
Yes. If you have made an application to the Tribunal, you can ask to withdraw your application. See guidance booklet MHRTW-06 for more information on withdrawing an application.
What happens if I am discharged before the hearing takes place?
The Tribunal can only consider the Section or Order you are currently subject to. If your Responsible Clinician discharges the Section or Order, the Tribunal hearing is cancelled.
Representation and legal aid
What is a representative?
This is someone who can support you at the hearing; it can be a legal representative or someone else.
Who can be a representative?
It can be your solicitor or someone like a family member (and often is). You can choose who you want it to be if you have the capacity to do so, they must be over 18 years of age, willing to be your representative, able to keep in touch with you, and physically well enough to carry out their role.
Can the representative attend the tribunal hearing?
Yes. But you must inform the tribunal that they will be attending by completing the relevant form.
Does the representative have to be legally qualified?
No. Your representative can be someone else, you can choose who you want if they have the capacity to do so, they must be over 18 years of age, willing to be your representative, able to keep in touch with you, and physically well enough to carry out their role
Am I entitled free legal representation?
Yes and the tribunal can provide a list of specialised solicitors.
The Responsible Authority
Who is the responsible authority?
This is dependent on the type of order you are under, but usually the local health board or managers of the responsible hospital or your local authority social services department.
What are they responsible for?
They have a responsibility to ensure that you know about your rights to make an application to the tribunal and also to refer cases for review.
What reports must the responsible authority provide?
The responsible authority must provide certain information about you to the tribunal such as a clinical report, social circumstances, their views, care plans and any other information they feel is relevant. For further information see guidance booklet MHRTW-10.
How much time does the responsible authority have to prepare reports?
Time limits for reports vary depending on the type of section you are under. Section 2 reports must be provided on the day of the hearing, where as other reports would be no later than 3 weeks from the date the tribunal received an application.
What information must be provided in a clinical (commonly known as the medical or psychiatric report), social circumstances and nursing report?
Information for reports is specified in the rules but would usually include personal information such as name, date of birth, what type of section you are subject to, where you are detained, why you are being detained and a summary of your history. For further information see guidance booklet MHRTW-11.
How long does it usually take the tribunal to issue its decision?
Usually the decision is made on the day; a copy of the written decision is sent you or your legal representative soon after the hearing. Sometimes the tribunal will be unable to reach a decision, for example because it does not have enough information. In this case the hearing will be adjourned and a new date will be arranged
What if I disagree with the Tribunal’s decision
If you wish to appeal against the decision of the Tribunal you must, within 28 days of receiving the written decision, apply to the Tribunal for leave to appeal to the Upper Tribunal. (See guidance booklet MHRTW-14).
You cannot appeal simply because you don’t agree with the decision. Leave will only be granted if you have grounds to argue that the decision was wrong in law.
If you are unhappy about how you were treated by the Tribunal members or staff or how the hearing was conducted you may make a complaint to the Tribunal which will be investigated.
How does the Tribunal reach its decision?
The tribunal takes into account all the information received from the responsible authority, your legal representative, you and from the medical member. The panel considers all this information before reaching a decision.